How Did Intended Victim Mike Pence Testify?
As a million outlets have reported, 21 months after Merrick Garland set up a framework that could obtain a for waiver executive privilege for January 6 without violating DOJ contact guidelines, 15 months after all January 6 investigations had converged on Mike Pence, over a year after investigators won precedents that made it possible, yesterday Mike Pence testified to a January 6 grand jury for around five hours.
This is definitely important news, but it is not new news. Given the recent precedent of then still sitting Vice President Dick Cheney giving a transcribed interview for presentation to the CIA Leak case grand jury in August 2004, it’s also not anywhere near as unprecedented as some outlets are hyping.
In fact, it’s so predictable, I’ve republished below, in its entirety, the post I wrote in November (before Jack Smith’s appointment) arguing that the publication of Pence’s book made this testimony far easier, and necessary, to get.
A witness with crucial testimony to a grand jury investigation testified before the grand jury. Far more importantly, the chief intended victim of a violent attack testified to the grand jury.
Little from this interview will be entirely new to prosecutors. I bet they even had a copy of Pence’s book with sticky tabs marking key pages. What will be important — and could even impact Smith’s charging decision — is whether Pence continued to shade the truth to protect Trump in some key episodes, or provided more honest testimony under oath.
It may actually matter whether Pence testified that he believed all Trump’s efforts to undermine the election outcome were justified. How Pence testified about his response to Trump’s focus on the rally on December 19 may matter (his role in a meeting with members of Congress on December 21 may be protected under the decision affording him Speech and Debate protection, which is a damned shame).
How Pence told this part of his January 6 story — the meeting he had on January 11 with Trump in its aftermath — may be one of the most important details of Pence’s testimony.
I met with the president on Jan. 11. He looked tired, and his voice seemed fainter than usual. “How are you?” he began. “How are Karen and Charlotte?” I replied tersely that we were fine and told him that they had been at the Capitol on Jan. 6. He responded with a hint of regret, “I just learned that.” He then asked, “Were you scared?”
“No,” I replied, “I was angry. You and I had our differences that day, Mr. President, and seeing those people tearing up the Capitol infuriated me.”
He started to bring up the election, saying that people were angry, but his voice trailed off.
I told him he had to set that aside, and he responded quietly, “Yeah.”
I said, “Those people who broke into the Capitol might’ve been supporters, but they are not our movement.” For five years, we had both spoken to crowds of the most patriotic, law-abiding, God-fearing people in the country.
For the public version, Pence described being angry at the rioters. He described being angry that they had targeted the Capitol building.
But just beneath the surface of this description is the disagreement Pence had with Trump. Just beneath the surface of this description is the obvious tie between Trump’s incitement and those rioters. Just beneath the surface of this description is the fact that Trump targeted those rioters at Pence. At Karen Pence. At Charlotte Pence.
Just beneath the surface of this description is Pence’s anger at Trump, not just the rioters.
How Pence described being the victim of Trump’s incitement matters. It’ll matter for the confidence with which Smith may have in a case relying on this testimony. It’ll matter for how convincing this case would be for a jury.
After a Year of Executive Privilege Fights, Mike Pence Just Tweeted It Out
The WSJ has published an excerpt — the parts relating to January 6 — from the Mike Pence book coming out next week. It includes descriptions of the following conversations with the then-President, at least some of which Pence was the only witness:
- Lunch on November 16, 2020, at which Trump said, “2024 is so far off.”
- A call on December 5, on which Trump raised the possibility of challenging the vote.
- A December cabinet meeting.
- A December 19 conversation in which Trump mentioned plans for the January 6 rally (which Pence claims to have thought was a “useful” idea).
- A January 1, 2021 phone call in which Pence told Trump he opposed Louie Gohmert’s lawsuit arguing that Pence had discretion to decide which votes to count. Trump accused his Vice President of being “too honest” and informed him that, “People are gonna think you’re stupid,” for choosing not to claim the power to throw out votes.
- A call on January 2 on which Trump said that if Pence, “wimp[ed] out,” he would be “just another somebody.”
- A meeting involving John Eastman and others on January 4.
- A meeting involving John Eastman in the Oval Office on January 5.
- The call Trump made to Pence on January 6 where he again called Pence a wimp.
- A meeting on January 11, where in response to Trump’s question whether he was scared on January 6, Pence said he was angry, purportedly just about the people “tearing up the Capitol.”
- An exchange inside the Oval Office during which Trump told Pence “Don’t bother” to pray for him.
Every one of these conversations are ones that would traditionally have been covered by Executive Privilege. Trump claimed such exchanges were covered by Executive Privilege starting over a year ago. Both Pence’s top aides — Greg Jacob and Marc Short — and three White House Counsels claimed such exchanges were covered by Executive Privilege this summer, and only in recent weeks did Beryl Howell override the claims of Pence’s people.
And yet, all the while, this book was in the works, including just on this topic, eleven conversations directly with the former President, many of them conversations to which Pence was the only witness.
Much of this description is self-serving (as most autobiographies are), an attempt to craft his support for challenging the election but not rioting. The excerpt, at least, does not disclose the advice that led him to reject Trump’s demand that he throw out votes.
This passage, in particular, seems to project any testimony that Eastman knew the request of Pence was illegal onto Greg Jacob, not himself.
On Jan. 4, the president’s chief of staff, Mark Meadows, summoned me to the Oval Office for a meeting with a long list of attendees, including the legal scholar John Eastman. I listened respectfully as Mr. Eastman argued that I should modify the proceedings, which require that electoral votes be opened and counted in alphabetical order, by saving the five disputed states until the end. Mr. Eastman claimed I had the authority to return the votes to the states until each legislature certified which of the competing slate of electors for the state was correct. I had already confirmed that there were no competing electors.
Mr. Eastman repeatedly qualified his argument, saying it was only a legal theory. I asked, “Do you think I have the authority to reject or return votes?”
He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”
At that I turned to the president, who was distracted, and said, “Mr. President, did you hear that? Even your lawyer doesn’t think I have the authority to return electoral votes.” The president nodded. As Mr. Eastman struggled to explain, the president replied, “I like the other thing better,” presumably meaning that I could simply reject electoral votes.
On Jan. 5, I got an urgent call that the president was asking to see me in the Oval Office. The president’s lawyers, including Mr. Eastman, were now requesting that I simply reject the electors. I later learned that Mr. Eastman had conceded to my general counsel that rejecting electoral votes was a bad idea and any attempt to do so would be quickly overturned by a unanimous Supreme Court. This guy didn’t even believe what he was telling the president.
By context, Pence asked Eastman whether Eastman thought Pence had “the authority to reject or return votes.” Eastman’s response, without qualification that he was addressing just one of those two items, was that, “it’s never been tested in the courts.” Then, by Pence’s telling, he directly told the then-President that Eastman had only said that returning votes to the states would be illegal. But that’s not what Eastman responded to! He responded to both, and did so in front of Trump.
By stating that Eastman later told his general counsel, Greg Jacob, that the Supreme Court would overturn any effort to reject the votes, rather than just return them, Pence is making Jacob the key witness, and he’s telling the story in such a way that Trump was not directly a witness to the conversation.
Maybe it really happened like Pence tells it. Maybe not. There were other attendees (including, probably, Jacob), and some of them have likely already described what they saw to the grand jury.
But this protective telling of the story is particularly interesting given this description of how, on January 1, Pence told Trump he didn’t have the authority to decide which votes to count.
Early on New Year’s Day, the phone rang. Texas Rep. Louie Gohmert and other Republicans had filed a lawsuit asking a federal judge to declare that I had “exclusive authority and sole discretion” to decide which electoral votes should count. “I don’t want to see ‘Pence Opposes Gohmert Suit’ as a headline this morning,” the president said. I told him I did oppose it. “If it gives you the power,” he asked, “why would you oppose it?” I told him, as I had many times, that I didn’t believe I possessed that power under the Constitution.
This is the first, in the excerpt, that he describes telling this to Trump. But he also says he had already told him the same, “many times.” The circumstances of those conversations would be really critical for pinpointing the timeline of Trump’s machinations and the extent that Pence warned him they were illegal.
For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.
Multiple copies, each with its own set of tabs.
Copy 1: Pence’s and his contacts with Trump
Copy 2: Pence and House members
Copy 3: Pence and WH counsel’s office
Copy 4: Pence and Rudy, Sidney, Mike Lindell, and the rest of the hangers-on
And then, of course, the Master Copy that brings it all together (with colored tabs to highlight which more focused copy it all relates to.
Having one of the chief witnesses/targeted victims of the crimes you are investigating publish a book certainly helps with some of the pre-grand jury questioning preparation.
No wonder Pence’s book made the best-seller lists!
That line stuck out to me for a different reason.
Me, I’d want it onna laptop, scanned and word-indexed with annotations and relevant links .
And I suspect the person posing the questions in front of the GJ might had asked a number of questions referring to Karen and Charlotte at a couple of points, if only to reinforce to Mike that it wasn’t a bunch of tourists coming through the Capitol. “When the Secret Service pulled you off the dias of the Senate, where were your wife and Charlotte? Did you meet up with them, or did the Secret Service take you one way and them another? If you saw them, how did they look to you – fearful, crying, angry?”
Focusing Mike Pence on the potential price his family might have paid that day might help focus him on the need for veracity in his testimony.
Because those are precisely the questions prosecutors will ask in a trial in which Pence will be one of their first or last witnesses.
Trump almost killed Pence’s daughter and wife. That’s one of the things that animated Liz Cheney, I think. And if you ask it right, you’re going to get fireworks from Pence, especially if he has given up hopes of attracting the MAGAts.
I would open with that. Set the tone. Yes, it was truly that serious. There are plenty of other horrible facts for later, but that would be a great open.
This aligns Pence with Jamie Raskin and Nancy Pelosi, both of whom also had family members present that day. Not that I’m suggesting a legal or political strategy, but my memory of how these lawmakers all worried about their family remains vivid. I can only imagine the horror and guilt I would feel if my relatives had visited me at work on such a disastrously wrong day. I assume that would be relatable to anyone.
GdiB, your comment is accurately touching, yes relatable to anyone (well, not to those that are off on the way-side of the bell-curve of human experience).
Thank you, Giorgino. I was thinking in terms of how a jury would process it, along the lines of bmaz’s comment. I’m assuming jury selection would exclude sociopaths, but you can’t be certain.
Well yes, I got the thread and would hope jury selection would screen out obvious -paths. They are, however, a subtle bunch, so no certainty.
I agree that the argument backdrop being family, in the 1st instance, is compelling! But maybe, I’m just a sentimental guy, and don’t have bmaz’s instincts.
As Fiona Hill warned about the “fetishisation of the US presidency”.
To Mike Pence, the job, the party, and Trump are more important than his own life and his family.
Therefore Pence probably doesn’t really care about his own wife and daughter.
Pence’s account of the 1/11 meeting with Trump may be Pence’s gloss of a meeting he knows nobody else witnessed, but still a meeting where he and Trump spoke honestly and off the cuff.
But it also sounds like it could be an account of a coreographed meeting set up to give both parties a cover story. It almost sounds like Trump was just reading some lines, and Pence’s little speech sounds strangely polished, much in the way a closed door meeting between a president and another foreign leader is regularly highly scripted by an army of aides to come to a predetermined result.
If it was coreographed, Smith probably went after whoever worked out the script, and having that plan confirmed by both the aides of Trump and Pence would certainly be useful, if he could get it.
Maybe this was all impromptu, but I’m guessing a lot of Trump’s last two weeks in office were devoted to negotiating cover stories while he still had legal protections and opportunities that would quickly end. A lot of accounts of this time, such as the Meadows book, sound like cover stories with carefully crafted lines delivered to establish alibis, as well as press accounts such ones by reporters like Michael Schmidt. But there had to be attempts by aides to get these accounts consistent, and set up the meetings where the soliloquies could be delivered. I guess we’ll see how successful Smith’s team has been in finding this evidence before he went to people like Pence.
Since there are books out on this by some of the key actors, it won’t be hard to look for the logical inconstencies in the retelling of the Jan 6 conspiracies. It seems that the WSJ is already leading with Pence’s tellings… One wonders what else is about to drop.
A potential topic of his testimony that might fly a bit under the radar is the matter of the fake electors.
In retrospect, the Trump assault on democracy was legalistic in nature. (Not legal, legalistic.) Trump needed Pence to take actions that would lead to some other pathway than counting and certifying the proper electoral votes. It appears that there were sundry possible pathways, including the recent disclosure of Senator Cruz’s bizarre proposed “Commission,” to decide the election. Simply throwing the vote to the House could have been sufficient.
The intersection of the mob violence and the legalistic attack appears to have been to afford time for the legalistic attack to achieve its objectives. These measures failed.
Why might the electors matter? Depending on what evidence DOJ is able to obtain they may be the strongest link from Trump – acting within the District – to the electoral obstruction. Yes, he made exhortations to “fight like hell,” but there are lots of First Amendment issues surrounding that act. There would seem to be no such possible First Amendment bar surrounding the fake elector scheme.
Why does these considerations matter? The issue of venue is likely going to shape the nature of the charges brought. Consistent with the Constitution, and other federal law, the DOJ Manual provides that:
“A case should not be presented to a grand jury in a district unless venue for the offense lies in that district.”
For any and all of the possible charges, obstruction, espionage (to use the short hand), fund raising fraud, you need an overt act of the crime (or an actionable failure to act) in the District. If the crime continues across multiple venues this could be satisfied, I believe, by interstate communications. So, when Corcoran sent an email to DOJ in the District asking for a delay in responding to the search warrant, that could be a sufficient basis for venue in D.C. assuming that the delay was part of the scheme of obstruction or willful retention. To like effect, communications between the fake electors and Trump may be a way to tie Trump’s actions in the District to the January 6 electoral obstruction. Let’s be clear: I am making some assumptions here, and if I am wrong on the law there are no shortage of competent folks on this site to correct me.
There is more to discuss regarding venue, including a conflict in circuit law between the D.C. Circuit and the 11th Circuit, but I strongly believe that the issue of venue is going to shape the charged activity.
Another topic I hope they probed with Pence was what communications led to Chuck Grassley sending a text during the late morning of Jan 5 claiming that he would be filling in for Pence during the Jan 6 EV counting. Grassley went further in that text to make clear he was open to hearing arguments in support of alternative elector slates. Grassley’s texts were pulled down by early afternoon. My recollection was that Trump met with Pence in a heated meeting on the morning of Jan 5. It would seem that.tracing the communications that led to Grassley’s message would be important. Was it a part of a plan to take Pence out of the process by a desperate White House?
Grassley’s message was widely reported and raised huge concerns on my part that a desperate plot was being hatched by Trump! Cannot help but feel this needs to be followed up upon!
Grassley’s consultations and actions leading up to that statement on Jan 5, 2021 may be protected by the Article 1, Section 6 of the Constitution. Certainly Pence already seems to have carved out a large exception that his testimony may be protected around that.
Point noted, and appreciated. i was disappointed this was not examined by Jan 6 Special Committee. Maybe media could help on this by raising the question of Trump, Pence and Grassley! Answers to how Grassley concluded he would be stepping in On January 6th are critical for historians to determine!
I like to think that Grassley, as third in the Presidential line of succession behind Pence and Pelosi, said on Jan 5 the quiet part out loud about a Jan 6 plan to cut VP Pence out of the certification of the Electoral College votes.
Grassley states he was misunderstood at the time, and his account in a 2022 article (see below) is nonsensical.
He states he merely meant he would cover the Senate chamber for Pence if the joint session were split up to hear senators’ objections to the State Electors, because, you know, by Jan 6 all of Trumps’ legal cases were over and ???! (And where did Grassley think Pence would go if the joint session were dispersed if not to the Senate Chamber, too?).
Be that as it may, on Jan 6 the angry mob storming the Capitol chanted “Hang Mike Pence” and an Oath Keeper hunting party prowled the halls of the Capitol looking to assassinate Nancy. By contrast, I have never heard a news account of the crowd looking for or chanting Grassley’s name. I wonder why?
The Guardian reports that “[Judge] Boasberg ruled that speech or debate protections did not shield him from testifying about any instances of potential criminality.”
So maybe there _was_ testimony re. Pence’s December 21 meeting with members of Congress.
Note how Pence’s rendering of the January 11 meeting has him taking charge and Trump meekly deferring …
Yes, the adjectives Pence uses to describe Trump’s voice and affect represent Pence at his most assertive in defying his master to that point. Passive-aggressive revenge?
We’ve seen that version of Trump a few times in public — when he’s read scripted statements which he really doesn’t want to read.
Once or twice during the worst of Covid, after accounts of his grotesque behavior became too much, his PR people would manage to convince him he had to go through the motions, and he’d do the same passive, monotone act as Pence describes here.
Everyone could tell it was insincere except for a smattering of professionally gullible reporters who would say this was the day he became president.
I think this account is a version of the same thing. Pence is counting on some professionally gullible people to treat this as the authentic Trump, but it seems pretty obvious this is all for show, and I suspect Pence’s role was scripted too.
“I said, “Those people who broke into the Capitol might’ve been supporters, but they are not our movement.” For five years, we had both spoken to crowds of the MOST PATRIOTIC, LAW-ABIDING, GOD-FEARING PEOPLE in the country.”
The hubris of Pence’s scripted words from his Book are breathtaking.
Whether Pence likes it or not, the people who assaulted the Capitol wholeheartedly believe that about themselves. That singular heartfelt sense of the Godly righteousness in their cause is what makes the “movement” so exceedingly dangerous.
No one is more convinced of the righteousness of their cause than a mob.
I understand some of the rioters were disappointed and confused when they returned home to families and communities that told them they weren’t heroes.
Years ago I read an article from the New Yorker, a mini-biography of Mike Pence. It may have been by Jane Mayer. It mentioned how Pence and his siblings behaved in a very structured way at the family dinner table. I remember because the same behavior was expected by my father: “Children are to be seen, not heard.”
It left an imprint on my brain that I may still have today. I suspect Mike Pence may have that same kind of imprint. In many respects, I think I can understand some of the ways Pence reasons. It reflects the fundamental ways that hierarchical and institutional conditions work.
I’ve experienced dissonance between my core beliefs and the expectations of people in positions of power that was so strong I believe it may have played a part in inducing the Cushing Syndrome I once had. My mind kept trying to reconcile things that I found so divergent they were almost incomprehensible.
I could see both the predicament I was in, as well as the predicament my antagonists perceived. I felt a strong need to reduce peril to all. But, even though there were threats to both myself and some of my family members, it was not that that ultimately persuaded me to step up and meet the challenge.
What caused me to confront the situation head on was the realization that nothing else was going to work. Individuals in the organization were not going to alter their behavior. And all the systemic cues would induce everyone else to follow along. The only thing that would change that was to follow the rule of law, the one that some powerful people had tried to subvert. Hopefully, Mike Pence can see that in his situation, too.
BTW, the reason I don’t think the conversations were scripted is because I have had somewhat similar conversations and experiences (although on a much smaller scale.)
Had to look up Cushing’s Syndrome in WP, as I’m not familiar with it. Says it’s a disease evidenced by an excess of cortisol in the system, but it lists only biological causes in the article. Sounds like your excess cortisol was caused by the cognitive dissonance of your situation. Cognitive dissonance is a prominent symptom of surviving inside of just about any “cult” situation, whether accompanied by high cortisol levels or not. We are fast becoming a nation where a growing number of people are running around in a state of CD…
SL – I am fascinated by your description of a “structured behavior” within a family and the connection to hierarchy and institutional behavior.
I was an only child of intellectuals, raised as an atheist with no knowledge of monotheism whatsoever. I was taught to question authority, speak my mind and value myself as equal to any male. I also learned a strict sense of honesty and morality.
The cognitive dissonance I’ve run into in my life generally involved hierarchies and institutions.
I was “let go” from my two favorite jobs because I refused to lie to follow the path set by my bosses. My response to questions of morality has always been to do the right thing, regardless of the effect on myself. I may be poor and have mostly online friends, but I go to bed every night with a clear conscience. That is the one thing I learned to value; the one thing that is truly my own.
Generally it is only good manners that keep me acting respectful around true religious believers and other types of hierarchy, like positions of power. I find someone like Trump disgusting, and view the religious Pence with contempt. I bristle at institutionalization.
I don’t know if I’m making any sense here, but I wanted to address “structured behavior.” It seems to be something I never learned.
You make perfect sense to me and I appreciate this post more than I can possibly say.
The only reason I got to keep my beloved job*? I had a contract. The people trying to force me out violated its terms in their efforts. It took me…let’s call it “awhile”**…to learn how to combat them–and their methods–by invoking the terms of the contract. Because they kept trying and believed themselves creative, I got quite good at contractual challenges.
Once I got tenure, I used my skills to subvert their attempts to target others unfairly. They had an ugly pattern, and I realized I wasn’t special: they would just move on to a new victim.
*My second beloved job. I lost my first beloved job when the three-year ‘contract’ I was offered verbally got truncated to two years November of my second year. Because neither the college president nor the department chair who had offered me three years ever put it on paper, and the new department chair confided “as a friend” that my tenured colleagues thought I was publishing too much. I had no grounds for appeal.
**(By “awhile” I mean an utter emotional collapse leading to a suicide attempt followed by a brief hospitalization. My supervisors had judged me a failure at doing what I loved and did best. Cognitive dissonance squared. Sure, I’d failed many times before, at things like softball, varsity crew (spectacular and public fault), sewing couture. But not the core of my professional life, which was, then, my entire identity.)
If you’ve seen Mike Pence debate (like Kamala Harris et al), you can get a sense of the pure meanness of some of his statements and actions. His life is about dominance in a hierarchy. At times he tries to be moral but it is a disjointed kind of morality and ethics that is about power and dominance by white Christian fundamentalists, he is a theological cypher. While it is great to hope for people to become kinder and more open to others opinions, he does not strike me as particularly gracious, nor well-equiped to get out of his own bubble. Perhaps Judge Smith will help him along on a corrected path to righteousness? I’m not holding my breath, particularly since Pence seems to be more hell-bent on cashing in on his fame and what little political capital he might have left.
One thing I will say of Pence is that the GOP Congress members put him there as VP to make sure Trump didn’t get too ahead of himself. As such, he seemed to have check the worst tendencies (admittedly not by much) of one of the worst (the worst?) President we’ve ever had…
Someone check back in on Pence when he starts talking about ethics problems and enforcing federal laws against some of the corrupt US Supreme Court nominees he’s supported over the years?
Pence was put there by Paul Manafort. Like most religious fanatics, he has no moral core. https://www.newsweek.com/paul-manafort-book-trump-mike-pence-vp-1729694
You packed a lot in those two sentences. And, in case somebody here doesn’t know, Manafort was a tool of the Kremlin. Moscow -> Manafort -> Pence (and Trump).
Maybe I’m off the reservation here, but the real shock congresscritters on both sides showed that day has made me think that the PB leading the charge into the Capitol was always plan B, and a hastily organized one at that.
There have been suggestions that the real plan was more of a Reichstag fire one, with some RW agitprop groups showing up dressed as Antifa, and with Trump and the OKs arriving to “save the day”. This would have given cause to invoke the Insurrection Act and, well we know what would happen next. And likely Pence would’ve been spirited away, and Grassley would’ve filled in and perhaps approved Cruz’s crazy plan.
But something went wrong. The pipebombs never exploded. Antifa failed to materialize. Tarrio was arrested. Did someone foil the plot?
There is no “Antifa”.
Sorry, I should have used that in quotes, that’s kinda my point bmaz.
In other loosely related news, I see fake “antifa” member Edward Norwood has recently changed lawyers.
His new one has a very very very interesting background.
Sorry meant William “Robbie” Norwood.
I think you meant William Robert Norwood?
well, except for the one that exists in Trump’s imagination, that his Department of Homeland Security officials admitted to congressional investigators they tried to manufacture for him.
. . .to boost his chance at re-election, of course. You know, so he could win the election fair and square… without any ‘cheating.’
So how do we get that DHS report about invented terrorist onto the record of Jim Jordan’s weaponization hearings ?
I imagine DOJ attorneys with Pence’s book in hand but also with transcripts of previous witnesses like Marc Short, Greg Jacobs and others, both as a way of pursuing topics and as a way of testing the veracity of other witnesses.
Question for BMAZ – how common is it to take a witness right to the grand jury, without sitting down with Pence, in this case, first to know what he was going to say?
Errata, 1st paragraph: “obtain a for waiver”? Should read “obtain a waiver for” maybe? Not sure… there’s another “for” in the same sentence… iOS autofill double at line feed hell maybe?
Correct, there is no and never has been an ANTIFA.
Sorry if I have repeated truth in the face of falsehood.